Discussion On The Justice Of National Penalty Power

In the field of legal ethnics, the justice of national penalty power is an important question. Carefully examining the national penalty power by the justice idea, we may discover that the national penalty power must conform to the justice's dual request from form aspect as well as the substantive aspect. Concerning the form aspect of justice, it requests the national penalty power to be provided with a series of characteristics, embodying in criterion, authority, openness. Criterion means the exercises of national penalty power must be clear stipulated by the legal form; authority of national penalty power means that the exercises of national penalty power must be grasped in the specific state agency; the national penalty power operation process must conform to procedural requirement; and the employ of national penalty power has the character of last result; finally, openness is also an important request on the form aspect of the justice of national penalty power. As for the substantive aspect of justice, the national penalty power should have three kinds of function of attacking crime, maintenance social order, safeguarding human rights on the substantive aspect. Speaking of attacking crime, the national penalty power always use the pain following with it, enormously deter the person who dare to crime. Concerning to the maintenance social order, the national penalty power can through general deterrent function, prevent criminal making crimes again, comfort the victim three aspect's function to realize the function of maintenance social order. As far as safeguarding human rights, the justice of national penalty power means during the time of attacking crime, maintenance social order, it can defend the criminal's basic personal dignity.In order to make the national penalty power conform to the request of ethics justice, it must have another premise: the way of the state catching national penalty power must have justice. The gain of national penalty power essentially is a moral question. The state can gain national penalty power through revolutionary and the democracy two ways, and two ways both have its justice. The state can through the revolutionary way obtain national the political power; moreover, this kind of gaining political power process has its justice. While the penalty power belongs to the state power, so the obtains of penalty power through the revolutionary way also has its justice. The justice of gaining national penalty power through revolutionary way first displays in this kind of penalty power can enormously remove the hindrance of the development of social productive forces. Next, it also displays in this way can safeguard in human right. The national penalty power may also obtain by the way of democracy. The democratic way not only lead to the national political authority has legality, moreover, also enable the national penalty power to have the valid foundation following with the state power. The penalty power obtains by the democratic way can maintain citizen's freedom; restrict the state's power; realize to the protection of social order finally, in all a word, can conforms to the requirement of justice.The country exertion of national penalty power must manifest justice idea is also an important aspect when discussing the national penalty power's morals justice. It embodies the concrete the establishment of punishment, the discretion of punishment, the execution of punishment. three stages. The implementation idea in the establishment of punishment only can pursue freedom. Realizes the national penalty power's justice request, the country must exercise the idea of equality and justice it the stage of the discretion of punishment. Judging from the justice idea of penalty, in the stage of execution, the state must manifest safeguard of human right and cannot carry some brutally, barbaric, torture way to execute penalty.